Wier v. Witney Land Co.

• Decision Date: 09 April 1970
• Docket Number: No. 266,266
• Citation: 263 A.2d 833,257 Md. 600
• Parties: John B. WIER, Jr., et al. v. WITNEY LAND COMPANY.
• Court: Maryland Court of Appeals

Page 600

257 Md. 600

263 A.2d 833

John B. WIER, Jr., et al. v. WITNEY LAND COMPANY.

No. 266.

Court of Appeals of Maryland.

April 9, 1970.

Werner G. Schoeler, Catonsville (Roland R. Bounds, Kenneth D. Short and Bounds, Scholer & Short, Catonsville, on the brief), for appellants.

W. Lee Harrison, Towson, for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SMITH and DIGGES, JJ.

BARNES, Judge.

In this zoning appeal, the appellants, John B. Wier, Jr., et al., who were protestants below, challenge the propriety of the granting by the County Board of Appeals of Baltimore County (the Board) of the reclassification of Phases I and II consisting of approximately 87.7 acres of land (net) and 43 acres of land, respectively, owned by the Witney Land Company, a Maryland Corporation, owned by Robert E. Meyerhoff and his brother, Harry Meyerhoff (petitioners, Witney or owner) from the existing R-20 (Residence, one-family, lot 20,000 square feet), R-10 (Residence, one-family, lot average of 10,000 square feet) and R-6 (Residence, one and two family, lot area 6,000 square zones to the R-A (Residence, Apartments) zone and the granting of a Special Exception for two 8 story elevator apartment buildings for 96 units each. The appellee and cross-appellant, Witney, who was the petitioner for reclassification of 299.1920 acres of its 325 acre tract in the Eighth Election District of Baltimore County consisting of Phases, I, II, III and IV (Phase III consisting of 80 acres, 78.9 acres net, and Phase IV consisting of 8i acres, 77.3 acres net), challenges the correctness of the action of the Board in denying the requested reclassification of Phases III and IV, from the existing R-40, R-20 and R-10 zones to the R-A, B-L (Business, Local) and B-R (Business, Roadside) zones as set forth in the application. The action of the Board by its order of July 2, 1968, was affirmed by the Circuit Court for Baltimore County (Jenifer, J.) by its order of June 10, 1969, and a timely appeal and cross- appeal were perfected from that order of the lower court.

Three questions are presented to us for our decision, i. e., whether or not the lower court erred (1) in refusing to dismiss the appeal of the protestants to it on the ground that they were not 'persons aggrieved' with sufficient status to maintain the appeal; (2) in declining to hold that the Board acted arbitrarily and capriciously in approving the reclassification for Phases I and II; and (by the cross-appellants) (3) in declining to hold that the Board acted arbitrarily and capriciously in not granting the reclassification for Phases III and IV.

This case was thoroughly and carefully tried before the Board. There were seven full days of testimony with a transcript of over 1,050 pages with some 46 documentary exhibits-26 filed by the petitioners and 20 by the protestants. The expert testimony produced by both sides was given by well qualified and well known experts. The opinion of the Board, filed on July 2, 1968, consists of some nine printed pages in the Record Extract and is a carefully considered opinion. The opinion of the lower court is also carefully considered, well written and has been most helpful to this Court. It consists of 16 printed pages in the Record Extract. Indeed, the analysis of the substantial record in the case by the lower court in its opinion is so accurately and completely done, that we shall adopt the statement of the facts as given in the lower court's opinion as our statement of the facts in this opinion for the Court. Judge Jenifer stated the facts as follows:

'The Petitioner in this case is Witney Land Company, the legal owner of a tract of land containing 325 acres situate in the Eighth Election District of Baltimore County, a portion of which was acquired in November of 1957 and the remaining portion of which was acquired in January of 1959. The corporation is owned by Robert E. Meyerhoff and his brother, Harry Meyerhoff, both of whom have been successful land developers of both dwellings and apartments since 1946. The zoning petition filed in the office of the Zoning Commissioner of Baltimore County on April 4, 1967, seeks a reclassification of 299.192 acres of the entire tract from R-6, R-10, R-20 nad R-40 zones to R-A (Apartments), B-L (Business, Local) and B-R (Business, Roadside) zones. The petition also requests a special exception for two elevator apartment buildings on 10.0163 acres of the apartment use land. The existing zoning classifications are shown on the Eighth District Land Use Map adopted December 20, 1955. The specific reclassifications sought are as follows:

                "R-6 to R-A   Parcel A         26.9503 acres
                 R-10 to R-A  Parcel B        169.7915 acres
                 R-10 to B-L  Parcel C         15.8883 acres
                 R-10 to B-R  Parcel D         13.8113 acres
                 R-20 to R-A  Parcel E, F, G   41.4900 acres
                 R-40 to R-A  Parcel H         31.2606 acres
                                              --------------
                       Total acreage          299.1920 acres
                

'The Zoning Commissioner of Baltimore County, by an Order dated May 16, 1967, denied the petition in its entirety. Although recognizing many changes in zoning, road patterns and available public utilities in the immediate area since the adoption of the Eighth District Map on December 20, 1955, it was his opinion that: 'Without an up-to-date comprehensive map and apartment zoning criteria, the petitioner's request is premature and could be detrimental to the public interest.'

'The subject tract is generally located south of Bosley Road, east of Warren Road and west of Pot Spring Road. There is a mixture of zoning and land uses surrounding the property. On the north side, there is R-20 and R-40 zoning facing the south side of Bosley Road; and on the north side of said road, there is R-40, R-20 and R-10 zoning on a sizeable tract of land now under development by other interests. The majority of the western and southwestern boundary is zoned R-A and is presently being developed for apartment use known as Briarcliff Apartments. Another portion of the southwestern boundary abuts an electric transmission line of the Baltimore Gas and Electric Company and land owned by Baltimore County, Maryland, developed as the Longview Golf Course. This public use along with a small undeveloped tract of R-A land and the Dulaney Senior High School abut the subject tract on the south. The entire eastern boundary in land owned by Villa Maria Inc., a Catholic corporation, and although zoned R-40, is devoted to institutional use by the Stella Maris Hospice and the St. Vincent Home.

'A large portion of the land sought to be rezoned was developed by the petitioner as an eighteen hole golf course in 1963 known as Dulaney Springs Golf Club and is presently being utilized for this purpose. This was done so as to enable the petitioner to acquire some revenue from the property and to hold the land until it was ready for development. The tract used as a golf course is situate north and northeast of Cranbrook Road and west and northwest of Padonia Road. That portion of the Petitioner's property located south of Cranbrook Road and east of Padonia Road is vacant, unimproved land.

'The petitioner proposes to develop the 299 acres in four stages in the event the reclassification of the property. As an entirety were granted. Phase I(1) would comprise 90 acres (82.7 acres net) and would be developed into 1532 apartment units, 1340 of which on 72.7 net acres would be of the garden type and the remaining 192 of which on approximately 10 acres would be contained in two, eight story elevator type apartment buildings of 96 units each. It is estimated that Phase 1 would require approximately seven years for completion depending upon the market demand for apartment accommodations. The portion of the land embraced in Phase 1 is bounded by Cranbrook Road, R-A zoning (Briarcliff Apartments) and the County owned Longview Golf Course on two sides, a small undeveloped R-A tract owned by Stefanowicz and the Dulaney Senior High School on the south side and the Villa Maria property on the east side.

'Phase II(2) consists of 47 acres (43.4 acres net) on which there is proposed to be constructed 524 garden apartment units and an estimated additional period of three years would be consumed in this phase. This area is bounded by Ridgland Road, the northerly side of Cranbrook Road, the westerly side of the Baltimore Gas and Electric Company transmission line and a line of division through the remaining land of the Petitioner. This part of the project would necessitate the relocation of two holes of Dulaney Springs Golf Course on other land of the Petitioner.

'Phase III(3) of the project would comprise 80 acres (78.9 acres net) of land on which it is proposed to build 1,300 additional apartment units, some being garden type and some being in elevator apartment buildings. The estimated period of construction would consume an additional five to six years span.

'Phase IV(4) includes the remaining 82 acres (77.3 acres net) of the 299 acre parcel on which there is planned for construction 902 additional apartment units on approximately 52.4 acres, a neighborhood shopping center of 70,000 square feet on 15.8 acres of B-L land and a one hundred room inn and restaurant on 13.8 acres of B-R land. It is contemplated by the petitioner that this last phase would require an additional five years for completion.

'The entire project as proposed by the applicant would contemplate the construction of a total of 4258 apartment units, shopping center and motor inn. According to the Vice-President of the petitioning corporation, completion of the plan would require an estimated fifteen to twenty year period of time.

'The hearing of this case before the Board consumed seven full days of testimony on December 19, 1967, January 9, 24, 25, 1968, and February 27, 28 and 29, 1968. The transcript contains over 1050 pages and 46 exhibits were filed, 26 by the petitioner and 20 by...